Gillespie v. Blitt & Gaines, P.C.

• Decision Date: 23 July 2015
• Docket Number: 14 C 9176
• Court: U.S. District Court — Northern District of Illinois
• Parties: Patrick Gillespie, Plaintiff, v. Blitt & Gaines, P.C., Defendant.

123 F.Supp.3d 1029

Patrick Gillespie, Plaintiff,

v.Blitt & Gaines, P.C., Defendant.

14 C 9176

United States District Court, N.D. Illinois, Eastern Division.

Signed July 23, 2015

Paul Mathew Bach, Ahmad Tayseer Sulaiman, First, Daniel John McGarry, Matthew H. Hector, Mohammed Omar Badwan, Sulaiman Law Group, Ltd., Oak Brook, IL, for Plaintiff.

Michael L. Starzec, Blitt and Gaines, P.C., Wheeling, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

Gary Feinerman, United States District Judge

On November 15, 2013, Blitt & Gaines, P.C., a debt collection law firm, sued Patrick Gillespie in state court on behalf of its client, Citibank, N.A., over an alleged $3,200 debt. Doc. 1–1. Blitt filed the suit in the Richard J. Daley Center Courthouse in Chicago, Illinois, which is part of the First Municipal District of the Circuit Court of Cook County, Illinois. Doc. 27 at 1; Doc. 35; Doc. 1–1 at 2. Gillespie, though, lived in River Grove, Illinois, which lies in the Fourth Municipal District. Doc. 27 at 1; Doc. 35; Doc. 1–2 at 2. Gillespie did not appear in the collection suit, and Blitt obtained a default judgment. Doc. 27 at 1; Doc. 35.

The Fair Debt Collection Practices Act ("FDCPA") requires debt collectors to file collection actions in the "judicial district or similar legal entity" where the contract was signed or where the debtor resides. 15 U.S.C. § 1692i(a)(2). When Blitt sued Gillespie in November 2013, Newsom v. Friedman, 76 F.3d 813 (7th Cir.1996), explicitly permitted a debt collector to file a collection suit in a municipal district of the Cook County Circuit Court other than the one where the debtor resided. Id. at 819 (holding that because "the Municipal Department districts are neither defined as judicial districts, nor ... function as judicial districts," they "do not fit within the definition of ‘judicial district’ as employed by the FDCPA"). Just two weeks before Blitt filed its suit, in fact, a panel of the Seventh Circuit, "see[ing] no reason to depart from [the court's] existing approach in § 1692i cases," adhered to Newsom . Suesz v. Med–1 Solutions, LLC, 734 F.3d 684, 686 (7th Cir.2013).

Six months later, however, the Seventh Circuit reversed course, vacating the panel opinion in Suesz ; overruling Newsom ; holding that "the correct interpretation of ‘judicial district or similar legal entity’ in § 1692i is the smallest geographic area that is relevant for determining venue in the court system in which the case is filed"; and, critically for this case, giving its new interpretation of § 1692i retroactive effect, even though debt collectors "ha[d] relied on Newsom to allow them to choose venue anywhere in the appropriate county." Suesz v. Med–1 Solutions, LLC, 757 F.3d 636, 638, 649 (7th Cir.2014) (en banc). For Blitt, this was very bad luck or, depending on your perspective, proof that karma exists. Taking advantage of this opportunity for litigation arbitrage, Gillespie promptly sued under the FDCPA. Doc. 1. His lawyers—bereft of shame or, again depending on your perspective, serving as karma's logistics department—have brought twenty-one other suits against Blitt and dozens more against other debt collectors, all for collection suits initiated prior to the en banc decision in Suesz . Doc. 26 at 10–11 & nn.9 & 11.

In light of Suesz, Blitt admitted that it had violated § 1692i by filing in the First Municipal District and therefore conceded that the Gillespie was entitled to summary judgment as to liability. Doc. 22; 3/10/2015 Tr. (Doc. 36–1) at 2–3. Now before the court is Blitt's motion for summary judgment as to damages, which contends that under the particular facts and circumstances of this case, Gillespie's damages should be nil. Doc. 26.

The FDCPA allows the recovery of actual damages and statutory damages. See 15 U.S.C. § 1692k(a). At the hearing where Blitt conceded liability, Gillespie represented that he would be seeking only statutory damages, as well as attorney fees and costs:

THE COURT: ... The plaintiff, by agreement of the parties, is granted summary judgement ... solely as to liability on the FDCPA claim. And then the only issue is damages.

And what's the plaintiff looking for here?

MS BLACH: We're looking for statutory [damages] of $1,000 and reasonable attorney's fees and costs.

* * *

THE COURT: ... And what's your plan going to be with respect to damages?

MS. BLACH: As I stated just a couple of moments ago, we'll file an accounting, and we're seeking $1,000 of statutory [damages] for the plaintiff.

3/10/2015 Tr. (Doc. 36–1) at 4–5.

Despite Gillespie's representation that he would not seek actual damages, Blitt's summary judgment motion nonetheless argues that it is entitled to summary judgment as to actual damages. Doc. 26 at 2–3. In support, and citing its uncontested Local Rule 56.1(a)(3) statement, Blitt notes that "[a]lthough Gillespie's Counsel regularly appears at the Daley Center where the Collection Action was filed, Gillespie has not filed an appearance, a motion to vacate or a motion to transfer." Id. at 3; see Doc. 27 at 1 (Blitt's Local Rule 56.1(a)(3) statement, which asserts that "Gillespie never filed an appearance in the Collection Case"); Doc. 35 (Gillespie's Local Rule 56.1(b)(3)(B) response, which states, "Plaintiff agrees with Defendant's Local Rule 56.1 statement of material facts"). Blitt adds that "Gillespie does not contend that he would have appeared had the Collection Case been filed in the 4th Municipal District, ten (10) miles closer to his residence." Doc. 26 at 3. Blitt concludes: "Accordingly, there is no genuine issue of fact, Gillespie incurred no actual damages and therefore, Blitt is entitled to an order of summary judgment in its favor as to actual damages as a matter of law." Ibid.

In response, and contrary to what he had said in open court, Gillespie argues that he should be allowed to "proceed to trial to prove actual damages." Doc. 34 at 3. Even putting aside Gillespie's earlier representation that he was not seeking actual damages, summary judgment as to actual damages is warranted.

Actual damages may be recovered only if the FDCPA violation caused harm to the plaintiff. As the Seventh Circuit put it, "only losses flowing from an FDCPA violation are recoverable as actual damages." Thomas v. Law Firm of Simpson & Cybak, 244 Fed.Appx. 741, 743 (7th Cir.2007). This holding is consistent with subsequent decisions characterizing actual damages as damages caused in some way by the FDCPA violation.See Harold v. Steel, 773 F.3d 884, 886 (7th Cir.2014) (noting that a debt collector who violates § 1692i"inflicts an injury measured by the costs of travelling or sending a lawyer to the remote court and moving for a change of venue"); Muha v. Encore Receivable Mgmt., Inc. , 558 F.3d 623, 629 (7th Cir.2009) ("Were the plaintiffs seeking actual damages rather than just statutory damages, they would have to present some evidence that they were misled to their detriment."). The holding also is consistent with decisions construing the actual damages provision in the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq.,see Vallies v. Sky Bank, 591 F.3d 152, 157 (3d Cir.2009) (collecting cases), which courts often consult for guidance when applying parallel provisions in the FDCPA, see, e.g., Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 588–89, 130 S.Ct. 1605, 176 L.Ed.2d 519 (2010), Zagorski v. Midwest Billing Servs., Inc., 128 F.3d 1164, 1166 n. 3 (7th Cir.1997).

As noted above, Blitt argues with record support that Gillespie did not suffer any harm due to its unlawful (in retrospect) filing of the collection suit in the wrong (in retrospect) Cook County courthouse. Where, as here, the movant meets its burden of "showing ... that there is an absence of evidence to support to nonmoving party's case," the non-movant has the burden to "go beyond the pleadings ... to demonstrate that there is evidence upon which a jury could properly proceed to find a verdict in [his] favor." Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 627 (7th Cir.2014) (internal quotation marks omitted). Although Gillespie argues that the FDCPA's actual damages provision covers more than the costs of "an attorney appearing in a remote incorrect venue," Doc. 34 at 4, he fails to identify which actual damages he actually suffered, much less adduce evidence from which a jury could conclude that the § 1692i violation caused him actual harm.

Gillespie's brief does contend that "by virtue of being sued in an inconvenient forum," he "was denied his day in court" and "[a]s a result ... took a default judgment." Id. at 8. But Gillespie does not support this contention with evidence. As noted above, Gillespie admits the assertions in Blitt's Local Rule 56.1(a)(3) statement—which, insofar as it speaks to the point, refutes rather than supports the proposition that he suffered actual damages—and he failed to file a Local Rule 56.1(b)(3)(C) statement that could have put evidence regarding actual damages, such as an affidavit from Gillespie himself, before the court. Gillespie does not need discovery from Blitt to show that he suffered damages; he is in the best position to make that showing. Accordingly, the assertion in Gillespie's brief that he suffered a default judgment as a result of Blitt's FDCPA violation, standing alone and without supporting evidence, cannot forestall summary judgment. See Mitze v. Colvin, 782 F.3d 879, 882 (7th Cir.2015) ("assertions in briefs are not evidence"); In re Morris Paint & Varnish Co., 773 F.2d 130, 134 (7th Cir.1985) ("Arguments and factual assertions made by counsel in a brief, unsupported by affidavits, cannot be given any weight.").

True enough, Suesz tightened the definition of "judicial district" in part due to the concern that Newsom made it too easy for debt collectors to "sue in a court that is not convenient to the debtor, as this makes default more likely." 757 F.3d at 639. But Suesz dealt only with liability; the decision does not...