OPINION AND ORDER
CHARLES RONALD NORGLE, District Judge.
Plaintiff Richard Lewis ("Plaintiff") brought suit against Defendant Northwest Collectors, Inc. ("Defendant"), alleging violations of the Fair Debt Collection Practices Act ("FDCPA"). The debt arises from PRA Behavioral, LLC's ("PRA") medical treatment of Plaintiff. PRA later assigned Plaintiff's debt to Defendant, who then sought to collect the debt. Before the Court are the parties' cross-motions for summary judgment. This opinion addresses both parties' motions. For the following reasons, Plaintiff's motion is denied, and Defendant's motion is granted in part and denied in part.
The parties' pleadings in this case are meager. The Complaint entails merely sixteen paragraphs outside of the jurisdictional and party statements, covering four counts. Regarding the Local Rule 56.1 statements of facts, Plaintiff provides only eleven paragraphs pertaining to material facts, and Defendant pleads just ten additional facts. Furthermore, Plaintiff fails to comply with LR 56.1(b)(3) in his response to Defendant's statement of additional facts. Plaintiff states that all but one of Defendant's additional facts are "irrelevant," "undisputed," or both. Then, Plaintiff proceeds to set forth legal arguments attempting to establish the irrelevance of many of Defendant's statement of additional facts. Irrelevance is not a basis upon which Plaintiff may present a dispute of material fact pursuant to LR 56.1; nor is Plaintiff's LR 56.1(b)(3) response the proper place to use legal arguments to undermine Defendant's position. Accordingly, the Court deems such facts undisputed and adopts Defendant's factual assertions.
Between June and October 2014, Plaintiff incurred debts with PRA for medical treatment. On or around February 20, 2015, the Bankruptcy Court for the Northern District of Illinois mailed a notice of Plaintiff's pending bankruptcy action to PRA. Defendant, however, disputes that PRA actually received such notice.
On March 16, 2015, PRA placed Plaintiff's debt for collection with Defendant, including Plaintiff's full name, date of birth, and social security number. Although the parties make no mention of additional information housed within the identification materials, the document also entails notations regarding what appear to be Plaintiff's bankruptcy status and bankruptcy attorney. However, the meanings of these notations are not clearly self-evident, and the parties provide no elaboration to elucidate the context. Defendant never performed or attempted to perform a bankruptcy scrub to determine whether Plaintiff had filed for bankruptcy. However, Defendant's 30(b)(6) witness represented that Defendant has an agreement with PRA, which provides that PRA will not refer debtors in bankruptcy and will immediately notify Defendant upon obtaining knowledge that an account is subject to bankruptcy or discharge in bankruptcy.
On March 18, 2015, Defendant mailed a collection letter to Plaintiff. When Plaintiff received Defendant's letter referencing the PRA debt, Plaintiff knew that his bankruptcy petition listed the PRA debt. After receiving Defendant's collection letter, Plaintiff was concerned about extra fees to his bankruptcy attorney if the attorney were to amend the bankruptcy filings to reflect the debt to Defendant. Additionally, Plaintiff relayed Defendant's letter to his bankruptcy attorney, who responded that he "would take care of it." Def.'s Additional Statement of Material Facts ¶ 6, Ex. 4, Trans. p. 15:17-21 (internal quotations omitted). Although Plaintiff feared paying additional attorney fees, Plaintiff was aware that his bankruptcy proceedings fell under Chapter Seven, which is a liquidation of all debts listed in the bankruptcy petition. Accordingly, Plaintiff also knew that any debt listed in that bankruptcy filing would be discharged and that he would no longer be liable for repayment of listed debts. The pleadings do not present evidence indicating that the bankruptcy proceedings have been completed.
Plaintiff asserts that on May 21, 2015,
The parties fail to elucidate in their statements of fact how or when Defendant actually acquired knowledge of Plaintiff's bankruptcy. Deposition testimony, however, reflects that Defendant learned of Plaintiff's bankruptcy when Defendant contacted Plaintiff by phone. During that call, Plaintiff stated that he was filing Chapter Seven bankruptcy and volunteered his bankruptcy attorney. After learning of Plaintiff's bankruptcy, Defendant updated Plaintiff's account to reflect his status as bankrupt. According to Defendant, it took no further collection efforts after it changed Plaintiff's account status.
In Count I, Plaintiff invokes 15 U.S.C. § 1692e(2), alleging that Defendant sent him a collection letter seeking to collect a debt that Defendant knew or should have known was part of Plaintiff's bankruptcy filings. In doing so, Defendant allegedly misrepresented the status of the debt. Count II sets forth an infraction of § 1692e(10) for allegedly falsely representing to Plaintiff that it could collect a debt that Defendant knew or should have known was included in Plaintiff's bankruptcy proceedings. Count III alleges that Defendant's attempt to collect the debt was unfair and unconscionable in violation of § 1692f because Defendant knew or should have known the debt was included in Plaintiff's bankruptcy. Finally, in Count IV, Plaintiff points to § 1692c(a)(2), claiming that Defendant violated the FDCPA because Defendant communicated directly with Plaintiff despite his retention of counsel concerning the debt. Both parties move for summary judgment on all four counts.
A. Standard of Review
"Summary judgment is appropriate when `the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'"
B. Claims Regarding Defendant's Attempts to Collect Debts Subject to Plaintiff's Bankruptcy
The Court first addresses Counts I, II, and III, which all relate Defendant's attempts to collect debt subject to Plaintiff's bankruptcy. Plaintiff invokes three FDCPA provisions FDCPA: (1) § 1692(e)(2); (2) § 1692e(10); and (3) § 1692f. Section 1692e bars debt collectors from using "any false, deceptive, or misleading representation or means in connection with the collection of nay debt."
1. Plaintiff's § 1692e Claims
Section 1692e "forbids a debt collector (which the defendant is) to `use any false, deceptive, or misleading representation . . . in connection with the collection of any debt."
Indeed, the Seventh Circuit has held that a false statement alone cannot automatically trigger liability under the FDCPA.
The Court turns to Defendant's motion for summary judgment on Plaintiff's § 1692e claims. Defendant states that "[s]ummary judgment should be entered for [Defendant] because Plaintiff was not deceived or misled by [Defendant's] letter." Def.'s Mem. in Resp. and Cross Mot. for Summ. J. at 3. In support of that assertion, Defendant argues that Plaintiff admitted at his deposition that he knew that: (1) the debt at issue was subject to his bankruptcy proceedings; (2) he was concerned that he would incur additional fees with his bankruptcy attorney (and not Defendant) in order to amend his bankruptcy to reflect the addition of a debt to Defendant; (3) he understood that his Chapter Seven discharge would liquidate all debts listed in his bankruptcy petition; and (4) he understood that any debt listed in his bankruptcy (including this debt) would be discharged and no longer owing via debt collection.
Notably absent from Defendant's brief, however, is any reference to whether Defendant's communication seeking to collect the debt would mislead or deceive the objectively unsophisticated consumer. In order to prevail at the summary judgment stage, Defendant must demonstrate that the dunning letter would not mislead or deceive the unsophisticated consumer; whether the communication subjectively misled or deceived Plaintiff is of no moment.
Here, Plaintiff's debts were listed in his bankruptcy petition, yet Plaintiff still received collection communications from Defendant. An unsophisticated consumer might be confused as to why he received communications seeking the debt outside of the bankruptcy proceedings or the manner in which the discharge must occur — through bankruptcy, debt collection, or perhaps both. The Court finds that Defendant's letter could have confused or deceived an unsophisticated consumer in these circumstances. On this basis, Defendant is not entitled to summary judgment as to Plaintiff's § 1692e claims.
In the alternative, Defendant argues that, even if it could be held liable for violating the FDCPA, the bona fide error defense absolves it of liability and entitles it to summary judgment. Section 1692k(c) of the FDCPA provides that: "A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error." 15 U.S.C. § 1692k(c);
Here, Defendant fails to establish the third prong. Defendant argues that
2. Plaintiff's § 1692f Claims
Plaintiff asserts that Defendant violated § 1692f. The Complaint does not invoke a specific subsection of § 1692f. Additionally, Plaintiff's brief merely provides a cursory citation to § 1692f(1) for the proposition that the FDCPA prohibits "the collection of any amount [of debt] that is not permitted by law." Pl.'s Mem. in Supp. of Mot. for Summ. J. at 1. Plaintiff also states that "collecting bankruptcy debt is not permitted by law in violation of 15 U.S.C. § 1692f(a)."
Defendant moves for summary judgment on the basis that Plaintiff cannot, as a matter of law, establish any unfair or unconscionable efforts by Defendant to collect the debt at issue. The Seventh Circuit has made explicit "that § 1692f, which prohibits a debt collector from using `unfair or unconscionable means to collect or attempt to collect any debt,' is not violated where a collector merely mails a letter to a consumer, noting that a debt had been referred to it for collection, even though the debt had previously been discharged in bankruptcy."
B. Claim Regarding Defendant's Communication with Plaintiff Despite Plaintiff's Retention of Counsel
Section 1692c(a)(2) proscribes debt collectors from directly communicating with a consumer in connection with any debt where the debt collector knows that the consumer has retained an attorney with respect to the debt, and the debt collector can readily ascertain the attorney's name and address. Plaintiff argues, in two scant paragraphs without a single citation to case law from within this circuit,
Defendant also moves for summary judgment on the § 1692c(a)(2) action. Defendant asserts that it ceased all contact with Plaintiff after Plaintiff told Defendant of his bankruptcy and his attorney's contact information and Plaintiff's claim thus fails as a matter of law. In support thereof, Defendant directs the Court's attention to
Aside from its cessation of communications, Defendant's argument for summary judgment rests on Defendant's assertions that it was not listed on Plaintiff's bankruptcy petition and never received notice of Plaintiff's bankruptcy. The pleadings, however, reveal that the materials that PRA provided to Defendant on March 16, 2015 containing Plaintiff's name, date of birth, and social security number also include notations that appear to be related to the filing of Plaintiff's Chapter Seven bankruptcy. Alongside the bankruptcy notation, the document makes reference to an attorney. However, the document is not identified, nor is the exact meaning of the notations clear — unfortunately the parties provide no elaboration with respect to this issue. Furthermore, the facts show that Defendant may have known from information outside of the bankruptcy filings that Plaintiff had retained counsel with respect to the debt at issue. Indeed, Defendant's deposition testimony indicates that it learned of Plaintiff's attorney through a phone call with Plaintiff. The facts, however, do not illustrate when that call took place — before or after Defendant contacted Plaintiff directly to collect the debt. Consequently, genuine issues of material fact remain with respect to whether Defendant knew that Plaintiff had retained counsel. A reasonable jury could return a verdict for Plaintiff, so Defendant is not entitled to summary judgment.
There is a genuine dispute of material fact with respect to Plaintiff's claims in Counts I, II, and IV of the Complaint. With respect to Counts I and II, which implicate § 1692e, both parties failed to address whether Defendant's debt collection letter would mislead or deceive the objectively unsophisticated consumer. Under the undisputed facts of the case at this juncture, neither party can establish whether Defendant, prior to its first communication to Plaintiff, knew that Plaintiff had retained counsel. Consequently, Counts I, II, and IV proceed.
As to Count III alleging a violation of § 1692f, the Seventh Circuit has made clear that a claim pursuant to this provision cannot proceed where a debt only mails a letter despite the debt's inclusion in bankruptcy proceedings. That is the circumstance in this case. Therefore, Count III must fail. For the reasons set forth above, Plaintiff's motion for summary judgment is denied, and Defendant's motion for summary judgment is granted in part and denied in part.
IT IS SO ORDERED.