Olvera v. Blitt & Gaines, P.C.

• Decision Date: 09 December 2005
• Docket Number: No. 04-4273.,No. 04-3734.,04-3734.,04-4273.
• Citation: 431 F.3d 285
• Parties: Enrique OLVERA and Jeffrey Dawson, Plaintiffs-Appellants, v. BLITT & GAINES, P.C., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

431 F.3d 285

Enrique OLVERA and Jeffrey Dawson, Plaintiffs-Appellants, v. BLITT & GAINES, P.C., et al., Defendants-Appellees.

No. 04-3734.

No. 04-4273.

United States Court of Appeals, Seventh Circuit.

Argued September 12, 2005.

Decided December 9, 2005.

Daniel A. Edelman (argued), John D. Blythin, Edelman, Combs & Latturner, Chicago, IL, for Plaintiffs-Appellants.

Christine Olson McTigue, David M. Schultz (argued), Hinshaw & Culbertson, Chicago, IL, for Defendants-Appellees.

Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge.

The question presented by these consolidated appeals is whether the assignee of a debt in Illinois is free to charge the same interest rate that the assignor — the original creditor — charged the debtor, rather than constrained to the lower, statutory rate, even if the assignee does not have a license that expressly permits the charging of a higher rate. The interest rates that the credit card companies that are the assignors in this case charged delinquent borrowers had been 22.99 percent to Dawson and the greater of either 20.95 percent, or 18.2 percent plus the prime rate, to Olvera. The credit card companies assigned the plaintiffs' debts to companies that specialize in collecting bad debts. (Actually, Olvera owed the credit card company nothing, but that is not the basis of his suit.) These "bad-debt buyers" claim the right to charge debtors, during the interval between the buyers' purchase of the bad debts and either their collection or their abandonment, the same interest rates that the assignors had charged. In fact the bad-debt buyers charged only 19.7 percent to Dawson and 18.2 percent to Olvera, but the plaintiffs explain that "debt buyers often do this because they have so little information about the debt that the application of complex variable rate formulas is impossible."

Section 5 of the Illinois Interest Act forbids anyone to charge a higher interest rate "than is expressly authorized by this Act or other laws of this State." 815 ILCS 205/5. A creditor not licensed by the state's Department of Financial and Professional Regulation, unless it's a bank or is extending credit under a revolving credit arrangement, is forbidden to charge an interest rate of more than 5 or 9 percent; which ceiling applies depends on factors irrelevant to these appeals. 815 ILCS 205/2, 205/4. One of the credit card companies in this case was licensed and the other was a bank, so they violated no law by charging higher interest rates. 815 ILCS 205/4.2. It is unclear which slot for nonexempt creditors our bad-debt buyers belong in — the 5 percent or the 9 percent — but all that matters to the plaintiffs is that the bad-debt buyers are not licensed, for this means, the plaintiffs argue, that the interest rates charged by the bad-debt buyers to them, though no higher (actually lower) than the original, lawful interest rates, violate the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq.

How does a violation of state law become a violation of the federal Act? A provision of the Act forbids a debt collector to collect "any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law." § 1692f(1); Pollice v. National Tax Funding, L.P., 225 F.3d 379, 407-08 (3d Cir.2000). There was express authorization in the credit agreements, but the plaintiffs argue that, despite the disjunctive wording of the statute, "if state law expressly prohibits service charges, a service charge cannot be imposed even if the contract allows it." Id. (dictum); Tuttle v. Equifax Check, 190 F.3d 9, 13 (2d Cir.1999) (dictum); accord, "FTC Staff Commentary on the FDCPA," 53 Fed.Reg. 50,097, 50,108 (1988). This is a stretch, and not merely semantically; it makes the federal statute a vehicle for enforcing a state law, and why would Congress want to do that? But the plaintiffs have another string to their bow: the bad-debt buyers, they argue, misrepresented the legal status of their debts, in violation of another provision of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692e(2)(A), by representing that the interest rates they were charging were lawful when they were not.

Both theories depend on whether Illinois law prohibits the interest charges levied by the bad-debt buyers, and we can confine our analysis to that issue. Both district judges answered the question in the negative.

No appellate court has had occasion to decide whether section 5 of the Illinois Interest Act imposes the statutory interest ceilings on assignees of creditors who are authorized to charge interest rates higher than those ceilings. The plaintiffs argue that the only interest rates that nonexempt entities are authorized to charge are the statutory rates, and these assignees — the bad-debt buyers — are nonexempt. Q.E.D. This is a semantically unexceptionable reading, but it produces a senseless result. If the credit card company hires a lawyer to collect a debt from one of its customers, the debt will until paid or abandoned accrue interest at the rate originally charged by the company. Why should the interest rate be lower if instead of collecting the debt directly the credit card company assigns (sells) the debt to another company, which hires the lawyer to collect it? The plaintiffs argue that the original creditor, because to be exempt from the statutory interest-rate ceilings it must be either licensed or a bank, is subject to regulatory controls designed (at least in the case of the licensed company, 38 Ill. Admin. Code § 160.220) to prevent it from engaging in abusive collection practices; the debt buyers are not subject to those controls. But their collection practices are regulated by the Fair Debt Collection Practices Act, on which this suit is founded; and if that is not enough, the state regulatory agency's control over the licensed creditors enables it to prevent them from evading controls over collection practices by assigning debts to unlicensed entities. See 205 ILCS 660/8.2, 13, 670/9, 22; South 51 Development Corp. v. Vega, 335 Ill.App.3d 542, 269 Ill.Dec. 731, 781 N.E.2d 528, 535-39 (2002). Were there a regulatory gap, we would expect that agency to adopt the statutory interpretation for which the plaintiffs contend. It has never done so.

Adopting the plaintiffs' interpretation of the Illinois Interest Act would push the debt buyers out of the debt collection market and force the original creditors to do their own debt collection. Borrowers would not benefit on average, because creditors, being deprived of the assignment option as a practical matter (the statutory rates being far below the market interest rates for delinquent borrowers), would face higher costs of collection and would pass much of the higher expense on to their customers in the form of even higher interest rates. It might be thought that assignees, since the debtors are not...