The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
James and Cecelia Challen ("Challens") sue Continental Illinois
National Bank and Trust Company of Chicago ("Continental") and
its Town and Country Charge division ("Town and Country")*fn1 based
on an allegedly tortious letter sent by defendant to Cecelia
Challen's employer concerning an outstanding debt. Continental
has moved under Fed.R.Civ.P. ("Rule") 12 for an order dismissing
Counts I, II, III and V of the Complaint.*fn2 For the reasons stated
in this memorandum opinion and order Continental's motion is
granted in part and denied in part.
Count I and part of Count V attempt to state a cause of action
under the Fair Debt Collection Practices Act (the "Act,"
15 U.S.C. § 1692-1692o). By its terms the Act applies only to "debt
collectors," defined in 15 U.S.C. § 1692a(6):
The term "debt collector" means any person who uses
any instrumentality of interstate commerce or the
mails in any business the principal purpose of which
is the collection of any debts, or who regularly
collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed
or due another.
Thus the critical issue is whether Continental*fn3 is collecting its
own or another creditor's debts.*fn4
Challen's ill-drawn Complaint is really unclear on that score
(as on numerous others). Paragraph XII alleges:
Town and Country . . . has an independent function
separate and apart from [Continental] namely the
issuance of credit based on Visa and Mastercharge
trade-names which credit is kept separate and apart
from other lending and collecting functions conducted
by [Continental]. . . .
That allegation alone could be fatal to Challens' claim for
reasons similar to those discussed at n. 3. But Complaint ¶ VIII
states a basically contradictory allegation, under which "Visa"
may be a legal entity rather than a trade name, or alternatively
might make Continental a "debt collector" under the other branch
of Section 1692a(6):
Defendants are persons using the mails toward
collecting debts on a regular basis owed or due to be
asserted to be owed or due to Visa, and Visa is an
organization known or identified as Visa,
U.S.A. . . .
Cecelia Challen owes a debt to Continental. Complaint ¶¶ V-VI
allege Continental wrongfully sent a letter to Cecelia's employer
saying she (1) owed a debt that was overdue and (2) was
unresponsive and unwilling to discuss the delinquency. Finally,
Complaint ¶ VI alleges the letter was sent after an agreement had
been reached that placed Cecelia "in substantial compliance
toward the payment of the debt."
Challens allege sending the letter constituted an unlawful
violation of Cecelia's right to privacy.*fn6 But a creditor does not
violate a debtor's right to privacy when it sends a letter to an
employer informing the employer of the outstanding debt. Midwest
Glass Co. v. Stanford Developments Co., 34 Ill.App.3d 130, 134,
339 N.E.2d 274, 277 (1st Dist. 1975); Housh v. Peth, 165 Ohio St. 35,
133 N.E.2d 340 (1956); Patton v. Jacobs, 118 Ind. App. 358,
78 N.E.2d 789 (1948). To escape that rule Challens ...