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GUTSHALL v. BAILEY & ASSOCS.

August 13, 1991

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



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

 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 ...


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