Campbell v. Hall
| Decision Date | 17 March 2009 |
| Docket Number | Case No. 2:06-CV-127 JVB. |
| Citation | 624 F.Supp.2d 991 |
| Parties | Stella CAMPBELL and Susan Duron, Plaintiffs, v. Edward R. HALL, Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
Michael P. McIlree, Michael P. McIlree Attorney at Law, Valparaiso, IN, for Plaintiffs.
Edward R. Hall, Law Office of Edward Hall, Merrillville, IN, for Defendant.
Plaintiffs Stella Campbell ("Ms. Campbell") and Susan Duron ("Ms. Duron") (collectively "Plaintiffs") instituted this action against Defendant Edward R. Hall ("Defendant") asserting violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq.1 Pending before the Court are Plaintiffs' Motion for Summary Judgment [DE 21] and Defendant's Cross-Motion for Summary Judgment [DE 31].2 For the reasons set forth below, the Court DENIES Plaintiffs' Motion for Summary Judgment [DE 21] with respect to (1) the amount of the debt issue, 15 U.S.C. § 1692g(a)(1); (2) the further communications issue, 15 U.S.C. § 1692g(a); and (3) the thirty-day debt validation issue, 15 U.S.C. § 1692g(a)(3). The Court GRANTS Defendant's Cross-Motion for Summary Judgment [DE 31] as to these issues. Furthermore, the Court WITHHOLDS JUDGMENT on the issues of whether (1) Defendant is liable under § 1692g(a)(3) by requiring that debt disputes be made in writing until the issue of whether Defendant is entitled to assert the bona fide error defense has been resolved; and (2) the statements Plaintiffs allege do, in fact, constitute literally false statements for which liability under the FDCPA may be imposed.
The parties do not dispute the following facts:
A. Background
Defendant is an attorney licensed to practice law in the State of Indiana, and has his principal place of business in Lake County, Indiana. (Def.'s Local Rule 56.1(a) Statement of Material Facts ("Facts") ¶ 1.) Defendant is a "debt collector" as defined by 15 U.S.C. § 1692a(6) of the FDCPA. (Facts ¶ 2.) Defendant was retained by Payday Today, a small loan lender, or "payday lender," concerning the collection of two payday loans, one to Ms. Campbell and one to Ms. Duron. (Facts ¶ 3.)
Plaintiffs are "consumers" as defined by 15 U.S.C. § 1692a(3) of the FDCPA. (Compl. ¶¶ 5, 6.) Plaintiffs transactions with Payday Today were primarily incurred for personal, family, or household purposes. (Campbell Aff. ¶ 3, Duron Aff. ¶ 3.)
On July 9, 2005, Ms. Campbell took out a loan with Payday Today in the amount of $230. (Facts ¶ 4.) Ms. Campbell's loan was to be paid off on July 23, 2005, and she postdated a check in the amount of $230 to Payday Today as security for the loan. (Facts ¶ 5.) When Payday Today deposited Ms. Campbell's check on July 25, 2005, the check was returned to Payday Today marked "NSF" for nonsufficient funds. (Facts ¶ 6.) Ms. Campbell defaulted on her loan, and Defendant sent her a debt collection letter on or about December 1, 2005. (Facts ¶ 7.) Because Ms. Campbell did not repay the loan, Defendant filed suit against her on January 13, 2006. (Facts ¶ 8.) A hearing was scheduled for February 14, 2006 and, on that day, Ms. Campbell entered into an Agreed Judgment. (Facts ¶¶ 8-9.) In the Agreed Judgment, Ms. Campbell admitted to defrauding a financial institution and agreed to pay a judgment of $1,302.91, which included a voluntary wage assignment of $50 every two weeks until the judgment was paid in full. (Facts ¶¶ 9-10.)
Ms. Duron took out a loan with Payday Today in the amount of $230 on August 25, 2005. (Facts ¶ 11.) Ms. Duron's loan was to be paid off on September 10, 2005, and she postdated a check in the amount of $230 to Payday Today as security for the loan. (Facts ¶ 12.) However, when Payday Today deposited Ms. Duron's check on or about September 12, 2005, the check was returned to Payday Today marked as "Refer to Maker." (Facts ¶ 13.) Because Ms. Duron defaulted on her loan, Defendant sent her a debt collection letter on or about March 6, 2006. (Facts ¶ 14.) After receiving the letter, Ms. Duron sent an email to Defendant stating that she had filed bankruptcy in October 2005, and the bankruptcy was discharged on February 6, 2006. (Facts ¶ 15.) Defendant took no further action against Ms. Duron. (Id.)
B. Debt Collection Letters
Ms. Campbell and Ms. Duron received the following debt collection letter dated December 1, 2005, and March 6, 2006, which states in pertinent part:
RE: DISHONORED CHECK TO Payday Today Inc./Merrillville
Please be advised that this office has been retained to represent the above lender with respect to a small Loan Agreement ... This lender accepted your check as security for a loan in the amount of ($230.00). The agreement called for your check to be cashed pursuant to the terms of the loan agreement, if you had not previously made arrangements to satisfy the loan. You have failed to make payment to the lender as agreed, and upon presentation, the banking institution on which it was drawn did not honor your check. You have been previously notified by the lender of your returned check and have taken no action to resolve this matter.
IF YOU WANT TO RESOLVE THIS MATTER WITHOUT A LAWSUIT, now is the time for action. To do so you must pay the following amounts: (1) the full amount of the check plus, (2) a $20.00 returned check fee, and (3) attorney fees of $300.00. This payment must be in the form of a cashiers check or money order payable to Attorney Edward R. Hall. If you fail to pay in full the amount due within ten days from the date of this letter, we may file suit immediately, in which you may be liable for the following amount under I.C. 24-4, 7-5 et seq: (1) the amount of the check, (2) a twenty dollar returned check fee, (3) court costs, (4) reasonable attorney fees, (5) all other reasonable costs of collection, (6) [t]hree times (3x) the amount of the check if the face amount of the check was not greater than $250.00, or (7) if the face amount of the check was $250.[00] or more, the check amount plus five hundred dollars ($500.00) and pre-judgment interest at the rate of 18% per annum.
IF YOUR CHECK WAS PRESENTED TO THE LENDER IN ANY FRAUDULENT MANNER (which is determined by the Court) you could be liable for the following amounts under I.C. 35-43-5-8:(1) [t]hree times the amount of the check, (2) [p]re-[j]udgment [i]nterest at the rate of [e]ighteen [p]ercent (18%) per annum, (3) a twenty dollar returned check fee, (4) court costs, (5) [a]ttorney fees, and (6) [t]hree times (3x) the amount of the check if [sic] the face amount of the check.
If suit is filed and a judgment is obtained against you, the lender may collect said judgment by having the sheriff seize and sell any non-exempt real or personal property of yours or by garnishment of non-exempt wages or other amount that other people owe you. Additionally, the lender may report your default and the amount of this judgment to applicable credit reporting agencies.
IF YOU DISPUTE THIS DEBT, or any portion thereof, you must notify this office in writing of that fact within 30 days of this letter. Exercising this option will not necessarily prevent legal [a]ction from being taken during the 30-day period. This debt will be assumed to be valid under the law unless you so dispute the debt. If you do dispute the debt, this office will obtain verification of the debt and mail such verification to you. To avoid the penalties and consequences stated herein you must contact the law office of Edward R. Hall to discuss your outstanding balance. Please ask for the collection department.
Please Govern Yourself Accordingly.
Sincerely,
COLLECTION DEPARTMENT
This is an attempt to collect a debt, and any information obtained will be used for the purposes of assisting in the collection of said debt.
(Compl., Exs. A & B.)
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Rule 56(c) of the Federal Rules of Civil Procedure). Once the moving party has produced evidence to show that it is entitled to summary judgment, the party seeking to avoid such judgment must affirmatively demonstrate that a genuine issue of material fact remains for trial. LINC Fin. Corp. v. Onwuteaka, 129 F.3d 917, 920 (7th Cir.1997).
In deciding a motion for summary judgment, a court must "review the record in the light most favorable to the nonmoving party and ... draw all reasonable inferences in that party's favor." Vanasco v. Nat'l-Louis Univ., 137 F.3d 962, 965 (7th Cir.1998). Nevertheless, the nonmovant may not rest upon mere allegations, but "must set forth specific facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56(e). A genuine issue of material fact is not shown by the mere existence of "some alleged factual dispute between the parties," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), or by "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252, 106 S.Ct. 2505. It is well-settled that summary judgment should be granted "only where it is perfectly clear that there is no dispute about either the facts of the controversy or the inferences to be drawn from such facts." Cent. Nat'l Life Ins. Co. v. Fid. & Deposit Co. of Md., 626 F.2d 537, 539 (7th Cir.1980) (citing U.S. v. Diebold, Inc., 369 U.S. 654, 655, 82...
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