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GUTSHALL v. BAILEY & ASSOCS.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, WESTERN DIVISION


August 13, 1991

JAMES E. GUTSHALL, Plaintiff,
v.
BAILEY AND ASSOCIATES, Defendant.

The opinion of the court was delivered by: STANLEY J. ROSZKOWSKI

ORDER

 Before the court is Plaintiff's motion for partial summary judgment on liability. For the reasons set forth herein, Plaintiff's motion is denied.

 BACKGROUND

 This action is brought under the Fair Debt Collection Practices Act (hereinafter "the Act"). 15 U.S.C. § 1692 et seq. Jurisdiction of this court is based upon 15 U.S.C. § 1692k(d) and 28 U.S.C. § 1337. Briefly, Plaintiff's complaint alleges that on November 19, 1988, Plaintiff and Indian Trail Resorts/Honey Bend Resorts (hereinafter "Indian Trail") entered into a retail installment contract for the sale of membership rights to certain recreational resorts. Plaintiff's complaint alleges violations of the Act by Defendant in relation to Defendant's debt collection communications to Plaintiff.

 On July 24th and August 24th of 1989, Indian Trail mailed debt collection communications to Plaintiff. On September 15, 1989, Defendant mailed a debt collection communication to Plaintiff. On October 10, 1989 Plaintiff's attorney wrote a representation letter to Defendant. Indian Trail again mailed a debt collection communication to Plaintiff on March 17, 1990. Finally, on March 24, 1990, Defendant mailed a debt collection communication to Plaintiff.

 Two issues are present in this case. The first issue is whether Defendant is a debt collector as defined by the Act. If so, the second issue is whether Defendant violated the Act in its debt collection practices with Plaintiff. Plaintiff seeks partial summary judgment as to liability, leaving the question of damages for another date.

 DISCUSSION

 This court will not grant any summary judgment motion unless all of the pleadings and supporting documents, if any, indicate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202 , 106 S. Ct. 2505 (1986); Fitzsimmons v. Best, 528 F.2d 692, 694 (7th Cir. 1976). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202 , 106 S. Ct. 2505 (1986). The district court, however, is not required to evaluate every conceivable inference that can be drawn from evidentiary matters, but only reasonable ones. Parker v. Federal Nat'l Mortgage Ass'n 741 F.2d 975, 980 (7th Cir. 1984).

 Section 1692a(6) of the Act defines "debt collector" as follows:

 . . . 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 . . . The term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts.

 Section 1692a(6) goes on to state that the term excludes:

 (A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor;

 (B) any person while acting as a debt collector for another person, both of whom are related by common ownership or affiliated by corporate control, if the person acting as a debt collector does so only for persons to whom it is so related or affiliated and if the principal business of such person is not the collection of debts . . .

 On September 15, 1989, Defendant mailed a debt collection communication to Plaintiff. Plaintiff claims that this letter along with Defendant's statement of Plaintiff's account dated March 24, 1990 were deceptive in that Defendant represented himself as an independent attorney or law firm collecting debts in the name of Indian Trial, the creditor. As such, Plaintiff asserts that he was deceived into believing that these were not mere communications but rather that this was a more serious step in the debt collection process.

 Upon examination of the letter dated September 15, 1989, the court finds that summary judgment on the issue of liability is inappropriate in this case. The letter reads as follows:

 BAILEY & ASSOCIATES

 HONEY BEND RESORT*INDIAN TRAILS RESORT

 P.O. BOX 490 - 108 WEST UNION

 LITCHFIELD, ILLINOIS 62056

 MICHAEL B. WHITE (217 324-2741)

 CORPORATE COUNSEL

 September 15, 1989

 Mr. & Mrs. James Gutshall

 1018 39th Ave.

 Rockford, IL 61109

 RE: Honey Bend/Indian Trails Resort

 Retail Installment Contract

 Dear Mr. & Mrs. Gutshall,

 Under the terms of your installment contract, we are entitled to collect our reasonable attorney's fees and court costs in the event of your default under the contract. My involvement in this case has already caused additional fees in the amount of $ 150 to accrue. We will waive this charge if you bring your account up to date immediately. In the event that you do not do so within ten (10) days of the date of this letter, we elect to demand payment in full of the balance due in the amount of $ 1851.93 and will file suit against you for that amount plus interest, court costs, and attorney's fees.

 We urge you to contact your account representative, Shelly A. Williams, at (217) 324-6381 immediately to make arrangements for payment in order to save yourself the time and expense of court action.

 Very truly yours,

 Michael B. White

 Attorney at Law

 The letter bears the signature of Attorney White.

 The letter indicates that Attorney White is corporate counsel for Indian Trail. Section 1692a(6) of the Act clearly excludes officers or employees of a creditor who, in the name of the creditor, collects debts for the creditor. Moreover, the initial retail installment contract states that Bailey and Associates is the party with whom Plaintiff contracted. Defendant contends that Indian Trail is merely "part and parcel of Bailey and Associates." Defendant also asserts that this was explained in writing to Plaintiff.

 The court finds that a genuine issue of material fact exists precluding summary judgment on the issue of liability in this case. For example, an issue of fact exists as to whether Indian Trail and Attorney White used a name that would indicate that a third person was collecting the underlying debt in this case. Attorney White did comment that his "involvement" in this case caused attorney's fees to be accrued. Yet, the letterhead indicates that the letter was from Indian Trail and that Attorney White was corporate counsel for Indian Trail. As such, whether a name was used that would indicate a third person was collecting the debt is an issue of fact for the jury to decide. Accordingly, the court need not reach the second issue in this case, that is, whether Defendant violated the Act in collecting the underlying debt.

 CONCLUSION

 For the reasons set forth herein, Plaintiff's motion for partial summary judgment oil the issue of liability is denied. A status hearing is set before this court for September 11, 1991 at 9:30 a.m.

 ENTER:

 STANLEY J. ROSZKOWSKI, JUDGE

 UNITED STATES DISTRICT COURT

 DATED: August 13, 1991

19910813

© 1992-2004 VersusLaw Inc.



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