Horkey v. J.V.D.B. & Associates, Inc.

• Decision Date: 04 January 2002
• Docket Number: No. 01 C 1034.,01 C 1034.
• Citation: 179 F.Supp.2d 861
• Parties: Amanda HORKEY, Plaintiff, v. J.V.D.B. & ASSOCIATES, INC., an Illinois corporation, Defendant.
• Court: U.S. District Court — Northern District of Illinois

179 F.Supp.2d 861

Amanda HORKEY, Plaintiff, v. J.V.D.B. & ASSOCIATES, INC., an Illinois corporation, Defendant.

No. 01 C 1034.

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

January 4, 2002.

COPYRIGHT MATERIAL OMITTED

David J. Philipps, Mary Elizabeth Philipps, Gomolinski & Philipps, Ltd, Hickory Hills, IL, David Alan Hibben, Gomolinski & Philipps, Ltd., Hickory Hills, IL, for plaintiff.

Paul D. Lawent, Law Offices of Paul D. Lawent, Chicago, IL, for defendant.

MEMORANDUM OPINION AND ORDER

LEVIN, United States Magistrate Judge.

Before the Court is Plaintiff Amanda Horkey's ("Plaintiff") motion for summary judgment in the cause. For the reasons set forth below, Plaintiff's motion for summary judgment is granted as to Counts II and III and part of Count I and denied as to part of Count I of the Complaint.

BACKGROUND FACTS

Defendant J.V.D.B. & Associates, Inc. ("Defendant") is a debt collector as defined by the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692a.¹ (LR 56.1(a) St. ¶ 4.) Plaintiff is an individual from whom Defendant sought to collect a consumer debt owed for dental services. (LR 56.1(a) ¶ 3.)

On January 9, 2001, while Plaintiff was working at A & R Transport (located in San Bernardino, California) there were at least two telephone calls within about twenty minutes of each other from Defendant's employee, Mr. Chris Romero. (LR 56.1(a) St. ¶ 5.) Mr. Romero was contacting Plaintiff to collect on a $817.00 consumer debt that she owed to Dr. Marcus M. Que for dental services. (LR 56.1(a) St. ¶ 5.) During the first telephone conversation, Mr. Romero demanded payment from Plaintiff "in full" and "now" for the overdue bill owed to Mr. Que. (LR 56.1(a) St. ¶ 6.) Plaintiff told Mr. Romero that she could not pay the bill in full at that time. (LR 56.1(a) St. ¶ 7.) Mr. Romero informed Plaintiff that she could make two payments. (LR 56.1(a) St. ¶ 7.)

During the first telephone conversation, Plaintiff also told Mr. Romero that she could not speak with him at that time because she was at work. (LR 56.1(a) St. ¶ 7.) Plaintiff asked Mr. Romero for his telephone number so that she could call him back from her home to set up a payment schedule. (LR 56.1(a) St. ¶ 7.) Mr. Romero then began acting rudely and asked Plaintiff for additional personal information. (LR 56.1(a) St. ¶ 8.) Because Mr. Romero refused to listen to Plaintiff regarding the fact that she was not able to discuss the overdue payment matter while at work, she hung up on him. (LR 56.1(a) St. ¶ 8.) Immediately after hanging up on Mr. Romero, Plaintiff left her office for approximately fifteen minutes. (LR 56.1(a) ¶ 9.)

Mr. Romero, subsequently, called again and spoke with Mr. Jimmie Scholes, one of Plaintiff's co-workers. (LR 56.1(a) St. ¶¶ 10, 11.) Mr. Romero asked to speak with Plaintiff, at which time, Mr. Scholes informed Mr. Romero that Plaintiff had stepped away from her office for a few minutes and asked Mr. Romero if he could take a message for Plaintiff. (LR 56.1(a) St. ¶ 11.) Mr. Romero told Mr. Scholes to "tell Amanda to quit being such a fucking bitch" and hung up on him. (LR 56.1(a) St. ¶ 12.) Shortly, after Mr. Scholes informed Plaintiff of Mr. Romero's message, she received another telephone call in which the caller hung up when Plaintiff answered. (LR 56.1(a) St. ¶ 13.) Plaintiff believes that this third telephone call that she received within a twenty minute time span was also from Mr. Romero. (LR 56.1(a) St. ¶ 13.)

Plaintiff never received a written notice from Defendant informing her of her right to receive validation and verification of the debt owed to Mr. Que, as required by Section 1692a of the FDCPA. 15 U.S.C. § 1692a. (LR 56.1(a) St. ¶ 14.) Moreover, on June 28, 2001, Defendant's counsel herein, Paul D. Lawent, produced a copy of a December 21, 2000 initial form debt collection letter on his own attorney letterhead (which had been sent to Plaintiff), seeking to collect on the $817.00 debt owed to Mr. Que. (LR 56.1(a) St. ¶ 15.) This letter, which is the only debt collection letter that was sent to Plaintiff, contains no reference to Defendant. (LR 56.1(a) St. ¶ 15.)

LEGAL STANDARD

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party had 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 to draw all reasonable inferences in that party's favor." Vanasco v. National-Louis Univ., 137 F.3d 962, 964 (7th Cir.1998). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 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). See also LINC, 129 F.3d at 920. A genuine issue of material fact is not shown by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 or by "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. 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, 91 L.Ed.2d 202.

ANALYSIS

I. COUNT III

Plaintiff argues that Defendant failed to provide Plaintiff with a statutorily-required validation notice, in violation of Section 1692g of the FDCPA, in that the notice was sent on Defendant's attorney's letterhead and in no way referenced Defendant. 15 U.S.C. § 1692g. Pl.'s Mem. at 5. Defendant, on the other hand, asserts that Defendant's attorney's letter (of December 21, 2000) was a debt validation notice and, anyway, that any failure by it to provide Plaintiff with the validation notice did not violate Section 1692g of the FDCPA because Defendant did not have Plaintiff's home or work addresses in California. Def.'s Mem. at 2-3. Thus, Defendant argues that, "sending another validation notice would have been a waste of time." Id. at 2.

Section 1692g(a) of the FDCPA requires that "[w]ithin five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, ... send the consumer a written notice containing — ... (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector." 15 U.S.C. § 1692g(a)(3). Moreover, according to Section 809 of the Federal Trade Commission's ("FTC") Official Commentary on the Fair Debt Collection Practices Act, "[a] debt collector's agent may give the notice, as long as it is clear that the information is being provided on behalf of the debt collector." FTC Official Staff Commentary on the Fair Debt Collection Practices Act, 53 Fed.Reg. 50097-50110 (Dec. 13, 1988).

The Court agrees with Plaintiff and finds that Defendant failed to provide Plaintiff with the statutorily-required validation notice. Rather, Plaintiff was sent a notice by Defendant's attorney dated December 21, 2000 on the attorney's letter-head, which in no way referenced Defendant and in no way sought to indicate that Defendant's attorney had a business relationship with Defendant or was acting as Defendant's agent when attempting to collect the debt owed by Plaintiff.²

In any event, as seen, a debtor has 30 days after receipt of the debt notice to challenge the validity of the debt. Even assuming arguendo that the December 21, 2000 notice sent from Defendant's attorney can be construed as a validation notice pursuant to Section 1692g, Defendant's demand on January 9, 2001, that Plaintiff pay the bill in full "now" violated the 30-day validation period and therefore, would have overridden and rendered wholly ineffectual any validation notice. Avila v. Rubin, 84 F.3d 222, 226 (7th Cir.1996). See also Chauncey v. JDR Recovery Corp., 118 F.3d 516, 519 (7th Cir.1997) (demand for payment "within thirty days" violates Section 1692g of the FDCPA); Bartlett v. Heibl, 128 F.3d 497, 501 (7th Cir.1997) (demand for partial payment or suitable arrangements for payment within one week overshadowed the 30-day validation notice); Jenkins v. Union Corp., 999 F.Supp. 1120, 1131-1132 (N.D.Ill.1998) (demand that the debtor immediately make payment to, or arrangements with, the creditor, was held to violate Section 1692g of the FDCPA); Miller v. Payco-Gen. Am. Credits, Inc., 943 F.2d 482, 484-85 (4th Cir.1991) (debt collector's letter demanding that Plaintiff respond "immediately," "now," and "today" undercut and overshadowed the 30-day validation period).³

The Court also finds Defendant's assertion that it is excused (as "a waste of time") from sending Plaintiff a validation notice because it did not have Plaintiff's home or work addresses in California to be unavailing. While Plaintiff worked in California, she still owned her home in Plainfield, Illinois and any mail sent to Plaintiff at her last known address in Plainfield was forwarded to her in California by her Plainfield, Illinois tenant (since returning to Illinois, Plaintiff continues to live there). Pl.'s Reply at 6. In addition, if Plaintiff had not continued to own her home in...