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CHALLEN v. TOWN AND COUNTRY CHARGE

United States District Court, Northern District of Illinois, E.D


August 18, 1982

JAMES CHALLEN, ET AL., PLAINTIFFS,
v.
TOWN AND COUNTRY CHARGE, ET AL., DEFENDANTS.

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.

Counts I and V

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. . . .

Under Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957) this Court can dismiss the Complaint only if Challens can prove no set of facts that would support a cause of action. Because Challens could conceivably prove the allegations of Paragraph VIII and not of Paragraph XII, Counts I and V can stand.*fn5

Count II

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 contend their privacy rights were invaded because the letter was sent after an agreement was reached as to the outstanding debt.

That additional factor is not sufficient to state a cause of action for invasion of privacy, whose elements are, Midwest Glass, 34 Ill.App.3d at 133, 339 N.E.2d at 277:

(1) an intentional giving of unreasonable publicity

(2) to private debts

(3) without the debtor's consent,

    (4) made for the purpose of coercing or harassing
  the debtor into payment of the debt or of exposing
  the debtor to public contempt or ridicule.

Generally courts have found those standards satisfied when a creditor engages in a long pattern of harassing a debtor into payment of a debt. For example, the following facts were found sufficient in Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340, 344 (1956):

  However, the factual situation developed in the
  instant case is entirely different. The record shows
  that the defendant deliberately initiated a
  systematic campaign of harassment of the plaintiff,
  not only in numerous telephone calls to the plaintiff
  herself every day for a period of three weeks, some
  of which were late at night, but also calls to her
  superiors over the telephone, informing them of the
  debt. . . . The calls to the employer, and the
  rooming house, were all part of a pattern to harass
  and humiliate the plaintiff and cause her mental pain
  and anguish and cause her emotional disturbance for
  the purpose of coercing her to pay the debt.

In other words, an action for invasion of privacy will lie only when a creditor corresponds with an employer not legitimately to seek the employer's assistance in collecting a debt but rather as an unreasonable attempt to coerce or harass the debtor into paying the debt.

Here Complaint ¶ VI confirms that even after the alleged agreement was reached some debt remained outstanding. Thus the letter's alleged improprieties were (1) its failure to reflect the recent agreement and (2) its statement Cecelia was uncooperative. Though such allegedly false statements might constitute a libel, they do not support an invasion of privacy claim. One letter is still one letter. While the false statements may permit an inference of coercive intent (the fourth element of the Midwest Glass test), they do not constitute "unreasonable publicity" (the first element). As Midwest Glass, 34 Ill.App.2d at 134, 339 N.E.2d at 277 put it:

  With reference to these elements, it appears that the
  extent of publicity or degree of harassment, rather
  than the character of the oral or written
  communication, is dispositive of whether a debtor's
  right to privacy was invaded.

Thus Challens have failed to plead an actionable invasion of privacy and Count II must be dismissed.

Count III

Count III alleges Continental's actions constitute a tortious interference with Cecelia's contract of employment. Under both Illinois and Ohio law such a cause of action requires an allegation defendant triggered an actual breach of contract. Herman v. Prudence Mutual Casualty Co., 41 Ill.2d 468, 473-78, 244 N.E.2d 809, 812-14 (1969); Standard Oil Co. v. Landmark Farm Bureau Cooperative, 52 Ohio App.2d 225, 369 N.E.2d 785, 788 (Ohio Ct.App. 1976). No such allegation of actual breach is made here. Count III is also dismissed.

Count V

Count V also alleges Continental violated Sections 2917.21 and 4931.31 of the Ohio Revised Code. Those however are criminal statutes, and neither the statutes themselves nor any Ohio cases indicate they provide a civil private right of action. Accordingly that part of Count V must be dismissed.

Conclusion

As already indicated, the Complaint reflects little prior analysis or current craftsmanship. At this point a patchwork quilt of allegations survives, making an answer difficult. Challens are ordered to file an amended complaint, responsive to this Court's July 6 ruling and this opinion, on or before September 1, 1982. Continental shall answer or otherwise plead to that amended complaint on or before September 15. This action is set for a status hearing October 15 at 9:15 a.m.


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