McGlasson v. Blitt & Gaines, P.C.

• Decision Date: 03 April 2020
• Docket Number: NO. 4-19-0497,4-19-0497
• Citation: 2020 IL App (4th) 190497 -U
• Parties: JOHN B. McGLASSON, JR., Plaintiff-Appellant, v. BLITT and GAINES, P.C., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

2020 IL App (4th) 190497-U

JOHN B. McGLASSON, JR., Plaintiff-Appellant, v. BLITT and GAINES, P.C., Defendant-Appellee.

NO. 4-19-0497

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

April 3, 2020

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of McLean County

No. 17SC938

Honorable J. Jason Chambers, Judge Presiding.

JUSTICE TURNER delivered the judgment of the court.

Justices DeArmond and Cavanagh concurred in the judgment.

ORDER

¶ 1 Held: The trial court did not err in dismissing plaintiff's amended complaint.

¶ 2 On July 31, 2018, plaintiff John B. McGlasson, Jr., filed an amended small claims complaint against defendant, Blitt and Gaines, P.C. On January 15, 2019, the trial court dismissed plaintiff's amended complaint. Plaintiff appeals, arguing the court erred in dismissing his amended complaint. We affirm.

¶ 3 I. BACKGROUND

¶ 4 On June 30, 2017, plaintiff filed a small claims complaint against defendant. According to a "Statement of Facts" plaintiff attached to the complaint, plaintiff sent a certified letter to defendant on April 19, 2017, demanding absolute proof of the origin of the debt that is at the center of this case. Plaintiff alleged defendant had not responded to his letter. However, the record shows defendant had informed plaintiff prior to April 19, 2017, that the original creditor on the debt was Citibank (South Dakota), N.A. Plaintiff denied ever doing any business with Citibank. According to plaintiff, defendant had aggressively pursued collection efforts against him for over a decade regarding this "debt of unknown and possibly fraudulent origin." Plaintiff acknowledged a default judgment had been entered against plaintiff for this debt. However, plaintiff alleged the default judgment was secured through "deceptive and questionable service."

¶ 5 On October 10, 2017, defendant filed a motion to dismiss plaintiff's claim pursuant to section 2-619 of the Illinois Code of Civil Procedure (Procedure Code) (735 ILCS 5/2-619 (West 2016)). According to the motion, in 2007, defendant filed a verified complaint in McLean County, Illinois, on behalf of First Resolution Investment Corporation against plaintiff to collect money owed on a delinquent loan (McLean County case No. 07-SC-772). Judgment was entered against plaintiff on March 21, 2008.

¶ 6 Defendant noted plaintiff's complaint in this case was based on collection efforts which had been ongoing for more than a decade. Defendant argued plaintiff's complaint is barred by the statute of limitations. Defendant also claimed it was expressly exempt, as a law office, pursuant to section 2.03(5) of the Collection Agency Act (Collection Act) (225 ILCS 425/2.03(5) (West 2016)). Further, defendant argued neither the "continuing violation" doctrine nor the "discovery rule" could save plaintiff's claim.

¶ 7 On March 15, 2018, plaintiff responded to defendant's motion to dismiss. Plaintiff took issue with defendant's statute of limitations argument. Plaintiff did not argue defendant's alleged violation was not related to the ongoing debt collection process which plaintiff's "Statement of Facts" indicated had been ongoing for more than 10 years. Instead, he argued the case sub judice involved a new violation for which the statute of limitation would start anew. According to plaintiff, "it is not absolutely clear as a matter of law *** that all misconduct alleged was simply a continuing violation from previous issues." Plaintiff asked the trial court to deny the motion to dismiss. In the alternative, plaintiff asked for leave to amend his complaint.

¶ 8 On March 22, 2018, defendant filed its reply to plaintiff's response, addressing plaintiff's argument this case involved a new violation. According to defendant:

"The only possible act identified by the Plaintiff that has occurred within one-year of the filing of his Complaint is that he demanded 'absolute Proof of Origin of Debt' on April 19, 2017. Compl. ¶ 9. However, he also contends that he 'has demanded proof of "origin of debt" from Defendants on numerous occasions[.]' Compl. ¶ 4. Thus, Plaintiff is actually complaining of the same purported failure to validate *** that allegedly occurred 'on numerous occasions.' Unlike in Campos [v. Brooksbank, 120 F. Supp. 2d 1271 (2000)], *** the Plaintiff here is attempting to stretch out the statute of limitations by alleging the same failure to respond to his multiple 'Proof of Origin of Debt' requests.

Plaintiff's claims are time-barred because they are based on the exact same conduct and thus amount to an attempt to stretch out the statute of limitations. Accordingly, Defendant's Motion to Dismiss should be granted with prejudice." (Emphasis in original.)

¶ 9 On July 20, 2018, the trial court granted plaintiff leave to file an amended complaint, which was filed on July 31, 2018. According to the complaint:

"5. Defendant had pursued litigation against Plaintiff in another case for a purported creditor of Plaintiff.

6. In response to a request for verification of the claimed debt against him, Defendant responded to Plaintiff by letter dated March 24, 2017. A true and correct copy of that letter is attached hereto as Exhibit A.

7. Plaintiff responded to the March 24, 2017[,] letter with his own correspondence dated April 19, 2017. A true and correct copy of that letter is attached hereto as Exhibit B[.] The response was that the information provided in the March 24, 2017[,] letter was absolutely false because plaintiff never had an account of any kind with the institution referenced in the March 24, 2017[,] letter.

8. Plaintiff therefore demanded proof of the origin of debt from Defendant, maintaining he had never done any form of business with the entity purportedly named as his creditor."

Plaintiff went on to allege defendant had violated the Federal Fair Debt Collection Practices Act (FDCPA) (15 U.S.C. §§ 1692-1692p (West 2018)) and the Collection Act. According to plaintiff's amended complaint, "While Plaintiff has been damaged over the years by virtue of Defendant's misconduct in connection with its duties under the statutes, this case is being filed, in the form of an Amended Complaint to address Defendant's failure to comply with the collection statutes or conduct occurring in 2017, during the time frame set forth herein." Plaintiff raised his request for relief from $10,000 to $15,000. Exhibit A provided the following information to plaintiff:

"Creditor: First Resolution Investment Corp.

Original Creditor: Citibank (South Dakota), N.A.

Balance Due: $5,062.12

File Number: 07-43170

Account Number: *****5758"

Plaintiff responded in exhibit B:

"Hello, thank you for the response regarding verification of the above-named account.

Unfortunately this places us right back where we were years ago. I've again requested information regarding the account, and you've provided me only that it originated with Citibank, with zero proof of that. (Emphasis added.)

As I've stated many times, I'VE NEVER HAD AN ACCOUNT OF ANY KIND WITH CITIBANK. I've never banked with them, I've never had a card with them.

If you cannot provide ACTUAL PROOF of my having ever done business with Citibank immediately I will file suit against your firm for ten times the amount of this judgment.

Attorney General Lisa Madigan's office encouraged me to make one final effort to secure ACTUAL PROOF of this debt from you and to allow you 30 days to provide it.

If you do not I will be turning this case over to their office for prosecution and will file suit against you immediately. This is my final effort to resolve this situation with you." (Emphases in original.)

¶ 10 On August 21, 2018, defendant filed another motion to dismiss pursuant to section 2-619 of the Procedure Code (735 ILCS 5/2-619 (West 2018)). According to defendant, plaintiff's amended complaint raised the same time-barred claims as plaintiff's initial complaint. We note the FDCPA has a one-year statute of limitations (15 USC § 1692k(d) (West 2018)), and the Collection Act has a five-year statute of limitations (225 ILCS 425/9.5 (West 2018)).

Defendant argued the claims were barred under both of these statutes. Defendant also contended it was expressly exempt from the Collection Act because it is a law office (225 ILCS 425/2.03(5) (West 2018)). Further, defendant argued plaintiff's claim could not be saved by the "continuing violation" doctrine or the "discovery rule" because plaintiff had been aware of the alleged violations for more than 10 years.

¶ 11 On October 22, 2018, plaintiff responded to defendant's motion to dismiss. Plaintiff argued his amended complaint made specific allegations defendant breached its statutory duties in 2017. According to plaintiff, "Because the Amended Complaint must be liberally [construed in] Plaintiff's favor, the Court will see the allegations clearly focus upon conduct within the limitations periods. In paragraph 10, Plaintiff disavows seeking relief for conduct occurring outside the limitations periods." Further, plaintiff argued the exemption for licensed attorneys under the Collection Act is not as broad as defendant proposed.

¶ 12 On November 1, 2018, defendant replied, arguing plaintiff ignored defendant's argument the alleged violation at issue in this case—the failure to provide proof of the origin of the debt at issue—was raised in plaintiff's April 5, 2013, motion for wage deduction exemption, which was denied on May 9, 2013. Defendant attached plaintiff's exemption motion. According to defendant, plaintiff was aware of the alleged injury at issue in this case—the failure to provide proof of the origin of the debt—at the latest on May 9, 2013.

¶ 13 On January 15, 2019, the trial court granted defendant's motion to dismiss plaintiff's amended complaint. According to the docket entry, "Court points out that Amended Complaint asks for $15,000 in damages, making this an AR case instead of...